Moral science has two halves. There are the implications of thinking straight about fact and value (ideal theory) and there are the implications of not thinking straight. Ideal theory is the foundation, error theory the daily battle.

He has also left a revealing paper trail. Shortly after 9/11, Indiana University School of Law sponsored a forum on the likely legal fallout from the attacks: consequences for immigration law, civil rights, etcetera. As the university’s resident expert on Islamic (sharia) law, Jaques was invited to say something about our looming engagement with the Islamic world and their systems of law.

He chose to write a prescriptive article, urging the United States to frame its response in conformity with traditional sharia requirements:

In formulating an American response to the acts of terror, it is necessary to define them according to the provisions of Islamic law.

Whitewashing sharia

Jaques makes the basic arguments for submission that any anti-war multiculturalist might make. He offers an appeasement pitch:

If the United States wishes to approach the fight against terrorism to limit future revivalist terror groups from forming and attacking American citizens and interests, it will be necessary to craft a response that conforms to the realities of Islamic law.

And he offers a when-in-Rome pitch:

Muslim religious leaders think of the world in legal terms and will react to U.S. policies according to how these policies conflict or adhere to Islamic legal principles.

Of course we should avoid gratuitous offense, when in Rome (just as we should practice it as a pastime at home). But should we really submit to sharia law?

Nowhere does Jaques even acknowledge that world-wide submission to sharia law is the ultimate goal of the 9/11 terrorists. That is a pretty glaring omission for someone who is advocating adherence to sharia law, but Jaques does more than just elide the point. He actively misleads, going to great lengths to pretend that the terrorists reject the whole idea of sharia law:

[R]evivalist movements around the Islamic world are articulating new and exciting systems of legal interpretation that, in real terms, are similar to traditional legal norms. Only the violent fringe—approximately 1 percent to 2 percent of Muslims worldwide—would disparage any discussion of Islamic law as being reflective of the kinds of non-Islamic ideas that they claim have contaminated Islam since the very first centuries of Islamic history.

Talk about a whitewash! To paint sharia as benign, Jaques pretends that the "violent fringe" is opposed to it, and this is no offhand comment. The whole first third of Jaques’ discussion is spent setting up this punch line.

Qutb did you say?

Jaques begins by describing how Islamic jurisprudence has historically proceeded by working out consensus views of the meaning of "texts of revelation": the Koran and the sunnah (Muhammad's biography). He then discusses the trend toward "revivalism," starting in the 14th century, which sought to purify Islamic jurisprudence by purging all influences other than Koran and biography.

The modern phase of this revivalism is the work of Wahhab and Qtub, the sources of today's bin Ladenist doctrines of maximally aggressive conquest. Wahhab dismissed the requirement for consensus, insisting that anyone can read the Koran for themselves, and Qtub carried this innovation in a particularly violent direction:

Qutb advocated a radicalized form of Wahhabi extremism as the only means of driving foreign (meaning U.S. and Israeli) influences out of the Islamic world. His writings have become the basic texts of contemporary violent fringe movements around the Islamic world.

Jaques identifies the “violent fringe” with Qutb while claiming that the violent fringe “disparage[s] any discussion of Islamic law.” But Qutb did not shun sharia law. Just the opposite. He declared that any Muslim ruler who failed to impose sharia should be killed as an apostate.

Sayyid Qutb had pointed the way by declaring that a leader who does not impose Sharia on the country must be an apostate. There is a well known saying of the Prophet that the blood of Muslims cannot be shed except in three instances: as punishment for murder, or for marital infidelity, or for turning away from Islam. The pious Anwar Sadat was the first modern victim of the reverse logic of takfir.

Jaques takes the 20th century’s foremost advocate for imposing sharia by violent means across the entire globe and suggests that he and his followers "would disparage any discussion of Islamic law."

Whitewashing Wahhabism

Pretending that the violent fringe spurns sharia allows Jaques to whitewash, not just sharia, but also the mainstream revivalist movements that, as Jaques acknowledges, fully embrace sharia:

... revivalist movements around the Islamic world are articulating new and exciting systems of legal interpretation that, in real terms, are similar to traditional legal norms.

The mainstream of revivalism is Saudi Wahhabism, the state sponsored doctrine of violent aggressive conquest whose "fringe" elements attacked us on 9/11. As Jaques notes, these revivalists are thoroughly traditional in their interpretations of sharia law. All of them look backwards to the purity of 7th century Islam. Not much “new” there, however “exciting” to a person of Jaques’ evident sympathies.

Doctrinally, there is no gap between the "violent fringe" of bin Ladenists and the larger Wahhabi sect that spawned them. At most there are questions about whether bin Laden has been a good general, whose strategies effectively serve the Wahhabi goal of world domination. Mainstream Wahhabism completely embraces all of bin Laden’s objectives.

Honest about one thing: how sharia limits infidel responses

When he turns to the question of how we could frame a military response that is consistent with sharia law, Jaques takes the subject seriously, and is commendably forthright, acknowledging sharia as the law of Islamic conquest:

The laws of war that developed in the earliest periods divide the world into two halves, dar al-Islam, or the "land of submission" and dar al-harb, the "land of war." Dar al-Islam refers to any territory that is under the control of Muslims and thus forms an Islamic commonwealth. Legal texts imply that the term is meant to denote a political designation of submission to Muslim political authority. … All areas outside of Muslim political authority are considered to be in a potential state of war with the Muslim state. All relations between the areas of submission and the areas of war are regulated by the concept of jihad … an obligatory "struggle" against non-believers who are not already under Muslim rule.

Any cessation in hostilities is purely strategic, until Muslims can get back to a position of strength from which to continue to fight:

The law outlines, in most cases, rules for the cessation of struggle (hudnah) when it is deemed by the Imam or his surrogates that it is to the advantage of the Muslims to do so, or out of a need due to Muslim weakness. In cases where Muslims simply seek some advantage in the cessation of hostilities, hudnah is limited to a period of four months. If the cessation of hostilities is due to Muslim weakness, hudnah can last for a period of up to 10 years.

Jaques also acknowledges that under Islamic law, infidels have no legal rights to fight back against Muslims at all:

…reaction by the United States becomes problematic since the rebels are still defined as Muslim and the law expressly forbids non-Muslims from attacking Muslims in a Muslim land.

Yes, well, that is the problem with conforming to the law of Islamic supremacism. It’s called "surrender."

Takfir squared, or Qutbed

So we must submit to Islamic law, says Jaques, yet according to Islamic law, we are not allowed to fight back. What to do? What to do?

Jaques, expert in the nuances of Islamic law, offers us a way out. We can embrace Qutb’s innovation and declare the bin Ladenists apostates! (The strategy of takfir.) Then we would be allowed to kill them. But of course we have to get Muslim jurists to okay this first:

American responses to the attacks will be greatly assisted if Muslim jurists are willing to define the attacks as riddah (apostasy) and not as bughat (rebellion), or simple homicide (qatl). In the latter two categories, the perpetrators remain Muslim and any effort by non-Muslims to punish them will expressly violate provisions in Islamic law that prevents non-Muslims from killing Muslims. Only apostates may be killed by non-Muslims, and in some interpretations, Muslims may ask non-Muslims for assistance in bringing apostates to justice.

The only way Jaques is able to make this Qutbian strategy seem like a real possibility is through his earlier deception, pretending that the "violent fringe" is hostile to sharia law. Since there is not actually any doctrinal divide between the bin Ladenists and the traditional Islam, there is no way for traditional jurists to declare them apostates.

Jaques himself makes clear that the complaint about bin Laden from the point of view of traditional Islam is that he acted without consensus, and that he seems to be a bad general, engaging in acts that weaken rather than strengthen the Muslim position:

Defining the acts as contraventions of ijma would not hinge just on the enormity of the acts (simple murder contravenes ijma but is not defined as apostasy), but also on the idea that they endanger the Muslim community because of what they suggest about structures of legal authority. Encouraging others to commit suicide, claiming the right to declare jihad, to kill thousands (including many Muslims) and destroy billions of dollars of property without proper consent, and to risk the lives of Muslims due to Western military and economic retaliations challenges the authority of the community of jurists and of every principle of law that, by consensus, seeks to promote the welfare of the Muslim community.

But if bin Laden is just a bad general, acting without proper authority, how exactly is he supposed to be declared an apostate? Under sharia, the terror attacks might at most be viewed as rebellion (for which infidels have no recourse), but as Jaques notes, the demise of the caliphate makes it impossible even to establish bin Laden as a rebel. Who is he rebelling against?

Defining the acts as bughat [rebellion] is complicated by the fact that there is no universally recognized Muslim leader in any area of the Muslim world and has not been for more than 700 years. Many jurists argue that since this is the case, rules for bughat are not applicable today.

The bin Ladenists are trying to rectify this lack of a recognized Muslim leader by establishing a new caliphate. That hardly makes them apostates.

First Jaques pretends that the terrorists are hostile to sharia law. Then he pretends that sharia law is hostile to the terrorists. All the while neglecting to mention that the terrorists' explicit goal is world submission to sharia law. That is quite a concatenation of strategic deception (taqiyya).

Jaques was just as deceptive in his advice to the Memorial Project

That giant Mecca-oriented crescent that forms the centerpiece of the Flight 93 Memorial? Jaques admits that it is similar to the Mecca-direction indicator around which every mosque is built, but so what:

...just because something is 'similar to' something else does not make it the 'same'.

The half-mile wide crescent is much too big, says Jaques, to be recognized as the central feature of a mosque. After all, that would make it the world's biggest mosque by a factor of a hundred! What could be sillier? But Taqiyya very much for asking.

Jaques does not name his own religious beliefs, but it seems pretty clear that he must be a Muslim, and probably of the revivalist stripe (which he finds so “new and exciting”). Will he deny it, as Islam allows (Koran, verse 16:106)? Feel free to ask. Please note any response in the comments.

UPDATE: not a "Clintonian" lie

Just an additional note on Jaques' statement that the “violent fringe”:

would disparage any discussion of Islamic law as being reflective of the kinds of non-Islamic ideas that they claim have contaminated Islam since the very first centuries of Islamic history.

Could Jaques possibly have been trying to say that any discussion of Islamic law is impossible with these people in the sense that they won’t brook any disagreement?

That would be a correct characterization of the “violent fringe.” They do indeed have a policy of killing anyone who disagrees with them. This interpretation of Jaques’ meaning would turn his deception into what one might call “a Clintonian lie.” His sentence clearly intends to mislead the reader, creating the impression that the “violent fringe” is hostile to Islamic law, yet Jaques would be holding on in his mind to the opposite meaning: that the violent ones are so fiercely attached to Islamic law that they reject any debate about it, allowing him to satisfy his conscience in a perverse way with the consolation that in some technical sense he is telling the truth.

But this “Clintonian” interpretation does not stand up to scrutiny, because Jaques has already been clear that the driving force behind the “revivalist” movement has always been their insistence that they are allowed to discuss Islamic law for themselves and come to their own logical conclusions about the meaning of Koran and Sunnah. Jaques traces this development first through the 14th century jurist Ibn Ibn Taymiyah, who:

… argued that for law to continue to be relevant to the needs of the Muslim community, jurists would have to exercise greater levels of independent reasoning and cast off those areas of law that were based on the blind adherence to the authority of previous generations of jurists.

Then he traces it through the 18th century founder of Saudi Wahhabism, Ibn 'Abd al-Wahhab who called for:

… the elevation of the individual Muslim as the sole interpreter of the texts of revelation: All that was necessary to interpret the will of God was individual piety and the ability to read the Qur'an and the traditions of the Prophet in their original Arabic.

And this is indeed what we see with Wahhabism in general and the “violent fringe” in particular: that as individuals they argue industriously, on the basis of Koran and Sunnah, that their ideology of violent aggressive conquest is the true Islam. Not only do they discuss it, but there is no way to shut them up (except by killing them).

Since Jaques himself has already acknowledged this gabby character of the revivalists, his claim that the “violent fringe” rejects “discussion of Islamic law” can only be counted a flat lie, presumably intended to have its obvious effect: whitewashing sharia law by pretending that the terrorists reject sharia law, as is necessary for the case Jaques is making: that the U.S. response to 9/11 should conform to sharia law.

About Me

Here is a short bio I sent to press people covering the Flight 93 memorial debacle. My training is as an economist. I was in the PhD program in economics at Stanford until my research led me more towards moral theory and constitutional law, at which point I dropped the program and started working on my own. I was writing a book on republicanism (the system of liberty under law) for World Ahead Publishing when I discovered that the Flight 93 memorial was going to be a terrorist memorial mosque. World Ahead agreed to first publish my book about this rehijacking of Flight 93 (Crescent of Betrayal, temporarily available for free download at CrescentOfBetrayal.com). This is not my first venture into journalism. Over the years I have been a writer, opinions editor, and advisor for Stanford’s conservative campus newspaper The Stanford Review, and am currently on the Review’s board of directors.